R v Chan - [2002] NSWCCA 71

Reported Decision:
(2002) 128 A Crim R 119

New South Wales

Court of Criminal Appeal

CITATION: R v Chan [2002] NSWCCA 71

FILE NUMBER(S): CCA 60134/00

HEARING DATE(S): 28/05/2001

JUDGMENT DATE:
19 March 2002

PARTIES :

Regina
Chi Keung Chan

JUDGMENT OF: Dowd J at 1; Greg James J at 69; Smart AJ at 75

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/0383

LOWER COURT JUDICIAL
OFFICER : Shadbolt DCJ

COUNSEL : Mr JC Papayanni- Applicant
Ms EL Fullerton SC- Crown/Respondent

SOLICITORS: William Chan & Co- Applicant
Commonwealth Director of Public Prosecutions- Crown/Respondent

CATCHWORDS: Sentence appeal - Head sentence - Non-parole period - Hierarchy of offenders - Importation of drugs

LEGISLATION CITED: Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Customs Act 1901 (Cth)
Judiciary Act 1903 (Cth)

CASES CITED:
Cheng v The Queen (2000) 74 ALJR 1482.
DPP (Cth) v El Karhani [1990] 21 NSWLR 370.
House v The King (1936) 55 CLR 499.
LI [1998] 1 VR 637.
Lowe v R (1984) 154 CLR 606.
Power (1973) 131 CLR 623.
R v Bateman (Unreported, NSWCCA, 18 September 2000).
R v Behar (Unreported, NSWCCA, 14 October 1998).
R v Bradley (1997) 137 FLR 314.
R v Budiman (1998) 102 A Crim R 411.
R v Cheung (WA) (1997) 97 A Crim R 283.
R v Drazkiewicz (Unreported, NSWCCA, 12 November 1993).
R v El Karhani [1990] 21 NSWLR 370.
R v Lee & Ng (Unreported, NSWCCA, 20 December 1996).
R v Meggett (Unreported, NSWSC, 2 June 1999).
R v Paull [1990] 20 NSWLR 427.
R v Peel [1971] 1 NSWLR 247.
R v Spiteri (Unreported, NSWCCA, 24 February 1999).
R v Tan (Vic) (1995) 78 A Crim R 300.
The Queen v Leroy [1984] 2 NSWLR 441.
The Queen v Majeric VICCCA 9 March 2001.
Wong v The Queen; Leung v The Queen [2001] 76 ALJR 79.

DECISION: 1. Leave to appeal against sentence granted; and 2. Appeal against sentence dismissed.

IN THE COURT
OF CRIMINAL APPEAL

DOWD J

GREG JAMES J

SMART AJ

Regina v Chi Keung CHAN

Judgment

1 DOWD J

: This is an application for leave to appeal against the severity of the sentence imposed on the applicant, Chi Keung Chan, who had entered a guilty plea before Shadbolt DCJ at the Downing Centre District Court on 13 June 1999 to a charge under s233B(1)(d) of the Customs Act 1901 (Cth), for being knowingly concerned in the importation of not less than a commercial quantity of a prohibited substance, namely heroin. The heroin of the subject offence weighed 253.3 kilograms. The maximum penalty is life imprisonment.

2 On 14 October 1998, the applicant was sentenced to thirteen years imprisonment, commencing that day to expire on 13 October 2011, with a non-parole period of ten years to commence 14 October 1998, to expire on 13 October 2008.

3 The Learned Sentencing Judge found that the objective seriousness of the offence warranted a sentence of thirty-six years.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Chan

Details

AGLC: R v Chan [2002] NSWCCA 71
Case: [2002] NSWCCA 71
Decision Date: 19 March 2002

CaseChat Overview and Summary

In the case of R v Chan, the appellant sought to appeal his sentence, which was imposed following his conviction for the importation of drugs. The matter was heard in the Court of Criminal Appeal of Western Australia. The primary contention was the length of the non-parole period imposed on the appellant, which he argued was excessive given the hierarchy of offenders involved in such crimes and the role he played in the importation scheme.

The court had to consider whether the primary judge erred in assessing the appropriate non-parole period, taking into account the appellant's role in the drug importation and his personal circumstances. It was necessary to determine if the sentence was disproportionate when compared to similar cases and whether the hierarchy of offenders in drug importation cases warranted a different approach to sentencing. The court also needed to weigh the principles of deterrence and rehabilitation against the severity of the sentence imposed.

In its judgment, the Court of Criminal Appeal examined the principles of sentencing in the context of drug importation offences and the established hierarchy of offenders. The court concluded that the primary judge did not err in determining the non-parole period, finding that the sentence was appropriate given the appellant's role and the need to maintain a deterrent effect. The court held that the sentence reflected the gravity of the offence and the need to protect the community from drug-related crime. The appeal was therefore dismissed, and the original sentence upheld.

Orders